Chapter 5, Part 4 - The Battle Lab

On April 9, 2010, U.S. District Judge James Robertson released a declassified Memorandum Order explaining his decision in the habeas corpus petition of Mohamedou Ould Slahi. His ruling concluded,

The government's problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. That concern may indeed be well-founded. Salahi fought with al-Qaida in Afghanistan (twenty years ago), associated with at least a half-dozen known al-Qaida members and terrorists, and somehow found and lived among or with al-Qaida cell members in Montreal . But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government's prediction that he may do unlawful acts in the future—any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture , Salahi was a “part of” al-Qaida. On the record before me, I cannot find that he was.

The petition for writ of habeas corpus is granted. Salahi must be released from custody. It is SO ORDERED.1

Slahi had initiated the habeas process five years before with a note he wrote by hand, in English, on March 3, 2005. “Hello,” the petition begins. “I, Mohamedou Ould Slahi, detained in GTMO under ISN #760, herewith apply for a writ of habeas corpus.” “As to my detention,” it continues,

I turned myself [in] on Sep. 2001 to my government in Mauritania , when they asked me to. My government extradited me eventually to the U.S. and since then I am being detained here in GTMO, Cuba .

I have done no crimes against the U.S. , nor did the U.S. charge me with crimes, thus I am filing for my immediate release.

In a release posted on the Department of Defense website the next day, the Pentagon touted the success of its “Battle Lab.” The 500 enemy combatants still being held in Guantánamo had generated more than 4,000 intelligence reports, the release said, “an unprecedented body of information [that] has expanded our understanding of al-Qaida and other terrorist organizations.” Credit for this success, it suggested, belonged to JTF-GTMO:

The Joint Task Force, Guantanamo Bay , Cuba (JFT-GTMO) remains the single best repository of al-Qaida information in the Department of Defense. Many detainees have admitted close relationships or other access to senior al-Qaida leadership. They provide valuable insights into the structure of that organization and associated terrorist groups. They have identified additional al-Qaida operatives and supporters, and have expanded our understanding of the extent of their presence in Europe, the United States , and throughout the CENTCOM area of operations. Detainees have also provided information on individuals connected to al-Qaida's pursuit of chemical, biological, and nuclear weapons. 3

“GTMO is currently the only DoD strategic interrogation center and will remain useful as long as the war on terrorism is underway and new enemy combatants are captured and sent there,” the release concludes. “The lessons learned at GTMO have advanced both the operational art of intelligence, and the development of strategic interrogations doctrine.”

By the spring of 2005, the broad outlines of that interrogation doctrine were well-known. In an open letter to the Senate Judiciary Committee in opposition to the nomination of Alberto Gonzales to replace John Ashcroft as Attorney General, twelve retired generals and admirals pointed to Gonzales's role in the Bush administration's decision to deny detainees Geneva Convention protections—a decision that, they said, went “hand in hand with the decision to relax the definition of torture and to alter interrogation doctrine accordingly.” The former commanders and senior military lawyers specifically criticized the series of OLC memos “prepared at [Gonzales's] direction” that replaced longstanding doctrine, elaborated in the Army Field Manual, “prohibiting ‘threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation.'” “The Manual was the product of decades of experience,” they argued, “experience that had shown, among other things, that such interrogation methods produce unreliable results and often impede further intelligence. Discounting the Manual's wisdom on this central point shows a disturbing disregard for the decades of hard-won knowledge of the professional American military.” 4

By the spring of 2005 it was also clear, from the protests and defections of military prosecutors like Stuart Couch, from the chronic turmoil surrounding the military commissions, and from the on-again off-again possibility that detainees would be able to press their cases in habeas proceedings, that the administration's unwise decisions and deviations from international and domestic prohibitions on torture had poisoned potential prosecutions. Worse, Slahi's Administrative Review Board hearing later that year, with its convenient recording equipment failure, offered an uneasy glimpse of what the administration might be in for if its “Special Projects” were in fact able to tell their stories in federal courts to habeas judges. A month after that hearing, in December 2005, President Bush signed the Detainee Treatment Act, prohibiting inhumane treatment but stripping federal courts of jurisdiction to hear Guantánamo habeas petitions. The administration tried to argue that the DTA likewise barred the Supreme Court from hearing Salim Ahmed Hamdan's challenge to the military commissions. When the court disagreed, finding that the Guantánamo commissions were not a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” the White House went back to the Republican-controlled Congress to win passage of the Military Commissions Act, which supposedly addressed the issues of fairness in military commission proceedings while emphatically denying all Guantánamo detainees access to habeas proceedings. 5

At Slahi's annual Administrative Review Board hearings, the government continued to maintain that he was an al-Qaeda operative, that he had recruited jihadists including members of the 9/11 hijacking teams, and that he had provided technical support for al-Qaeda communications networks—but it made no move to try him before the reconstituted military commissions, where his treatment was certain to be an issue. On March 9, 2006, Slahi wrote to Sylvia Royce, one of his attorneys:

I've received both the letters from you Sylvy and the others from Nancy that contains the new DTA. I read the whole thing and as you might have noticed I am not subject to a trial by the [Military Commission] for I've done none of the mentioned crimes in the new law.

You ask me to write you everything I told my interrogators. Are you out of your mind! How can I render uninterrupted interrogation that has been lasting the last 7 years. That's like asking Charlie Sheen, how many women he dated.

Yet I provided you with everything (almost) in my book, which the gov't denies you the access to. Furthermore I was going to go deeper in details, but I figured it was futile.

To make a long story short you may divide my time in two big steps.

• Pre-torture (I mean that I couldn't resist): I told them the truth about me having done nothing against your country. It lasted until May 22 nd , 2003.

• Post-torture era: where my brake broke loose. I yessed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [name redated] advise. I just wanted to get the monkeys off my back. I don't care how long I stay in jail. My belief comforts me.

One of you have got to come visit me, or I am going loco!

Nonetheless, I doubt that the gov't would provide you the intels I provided them. I mean a lot of it is true, though not incriminating. And the incriminating part are lies. Still, I persist that none of my statements in GTMO Bay or any other dictatorship countries are binding. Only the honest statements I'd make in front of a Fed judge and a jury would be binding.

Around the subject: I believe that your leader acts like a bad chess player (patzer). He keeps doing the wrong moves, and if he is cornered, he cheats. Why just thinking before moving! Or resigning the game. Not everybody's meant to play chess or being a president :) 6

The week that Slahi wrote that letter, the Republican party lost control of both houses of Congress in the 2006 midterm elections. As the new Congress was convening in January, the administration announced it was withdrawing the nomination of Jim Haynes to the Federal Court of Appeals. Haynes continued on as the Defense Department's General Counsel, and in November 2007, he intervened to block Lieutenant Colonel Stuart Couch from appearing before the House Judiciary Committee. That hearing had been convened following Attorney General-designate Michael Mukasey's refusal to state whether waterboarding was torture at his Senate confirmation hearing, and was meant to probe detainee treatment. Couch—whose experiences as Slahi's would-be military prosecutor were made public in the March 2007 Wall Street Journal profile “The Conscience of the Colonel,” had secured permission from his superiors to testify about the way in which Slahi's torture had derailed any possibility of a trial before a military commission and the tenuousness of many other detainee cases built on statements elicited under duress. On the eve of the hearing, Couch received an email advising him that Haynes “has determined that as a sitting judge and a former prosecutor, it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow.” 7

The Supreme Court finally ruled definitively in June 2008 in Boumediene v. Bush that Guantánamo detainees have a right to pursue habeas corpus petitions in federal court, and the following year Slahi and his attorneys pressed his case before Judge James Robertson, one of 17 Washington, DC-based judges assigned to hear more than 200 post- Boumediene petitions. In his April 9, 2010 unclassified opinion, Robertson summarized the government's case against Slahi this way:

Salahi has been in custody, without being charged with any crime, since November [redacted] 2001. He was first taken into custody by [redacted] on suspicion that he had been involved in the failed “Millennium Plot” to bomb the Los Angeles International Airport . The United States [redacted] transported him to Guantanamo Bay in August 2002. He has been there ever since….

The government's case, essentially, is that Salahi was so connected to al-Qaida for a decade beginning in 1990 that he must have been “part of” al-Qaida at the time of his capture. The allegations are that Salahi was a recruiter for al-Qaida – that indeed he recruited two of the men who became 9/11 hijackers and a third who became a 9/11 coordinator; that he actively supported his cousin, who is or was one of Osama Bin Laden's spiritual advisors; that he carried out orders to develop al-Qaida's telecommunications capacity; and that he had connections with an al-Qaida cell in Montreal.

Salahi concedes that he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaida. He maintains, however, that his association with al-Qaida ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaida members, he did nothing for al-Qaida after that time.

The government's case relies heavily on statements made by Salahi himself, but the reliability of those statements—most of them now retracted by Salahi—is open to question. 8

As Robertson explained in his ruling, previous court decisions in Guantánamo habeas cases had established that Congress's 2001 Authorization for the Use of Military Force gave the President “substantial authority to apprehend and detain those who pose a real danger to our security”; the AUMF specifically named “persons [the President] determined planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such … persons.” Early in the proceedings, the government argued that Slahi must remain detained because he was part of al-Qaeda when he was taken into custody and he had aided in the 9/11 attacks themselves by recruiting members of the Hamburg cell to join the hijacking teams. By the time Robertson heard arguments in the case, the government had abandoned its “aided in 9/11” claim, “acknowledging,” as Robertson notes in his ruling, “that Salahi probably did not even know about the 9/11 attacks.” Instead, in an “eleventh-hour brief,” the government substituted another claim, formulated in the wake of a holding by another habeas judge in a case involving an alleged cook for a Taliban brigade, that those who were not “part of” but who had given “purposeful and material support” to al-Qaeda or the Taliban in hostilities against U.S. coalition partners could also be denied release.

Robertson rejected this late claim outright, calling it a “non-starter”: “purposeful and material support” for al-Qaeda is a prosecutable offense under the 2006 and 2009 Military Commissions Acts, and Robertson could see from the evidence the government presented in Slahi's habeas proceedings that it “clearly has no triable criminal case of ‘purposeful and material support' against Salahi.” What remained was the government's claim that Slahi was “part of al-Qaeda.” Under the standard established in previous Guantánamo habeas proceedings, the government has the burden of proving the lawfulness of holding a detainee without charge or trial under the AUMF by a preponderance of the evidence. In Slahi's case, the government argued, essentially, “once al-Qaeda, always al-Qaeda,” and the fact that Slahi had sworn a loyalty oath to the organization 19 years before the 2009 habeas hearing hearing—at a time when the United States was supporting mujahideen forces in Afghanistan including al-Qaida—meant that the burden shifted to Slahi to prove that he was no longer a member. Slahi freely admitted he had sworn bayat in 1990, after training at the al-Farouq training camp in Afghanistan, and that he returned to Afghanistan in 1992 to fight in an al-Qaeda mortar battery against the pro-Soviet Afghan government in the town of Gardez. In video testimony from Guantánamo, Slahi told the court that was where his connection with al-Qaeda ended. “He testified that he was ‘part of' al-Qaeda only to join the struggle against the communists, and that, after his final trip to Afghanistan in 1992, he severed ties with al-Qaeda and provided no further support to the organization,” Judge Robertson recorded in his opinion.

The government countered that far from severing his ties with al-Qaeda in 1992, Slahi “actively recruited for al-Qaeda from 1991 to at least 1999” Its evidence consisted largely of statements Slahi made to interrogators. As Robertson explained,

The most damaging allegation against Salahi is that, in October 1999, he encouraged Ramzi bin al-Shibh, Marwan al-Shehhi, and Ziad Jarrah to join al-Qaida. Bin al-Shibh has been identified as the primary contact for the organizers of the 9/11 hijackers, and al-Shehhi and Jarrah became two of the hijackers. Under coercive interrogation, Salahi confessed to facilitating travel for “several of the 9/11 hijackers to Chechnya ,” justifying his assistance as “just” jihad. Salahi's testimony now is that he did nothing more than give bin al-Shibh and his friends lodging for one night. 9

This “confession,” Robertson's citation reveals, was contained in an August 2, 2003 intelligence report from Guantánamo. August 2, 2003 is the day that Miller's interrogation chief, posing as a Naval Captain dispatched directly from the White House, visited Slahi during his “special interrogation” and presented him the letter threatening to transfer his mother to Guantánamo.

“There is ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantanamo from mid-June 2003 to September 2003,” Robertson wrote. “Salahi made most, if not all, of the statements that the government seeks to use against him during the mistreatment or during the 2 years following it.” Moreover, statements the government submitted from other detainees to bolster its case may also have been coerced. “The government proffered corroboration for Salahi's 2003 statements about recruitment consists of statements by [redacted] Karim Mehdi,” he noted; however, “Salahi's attorney had submitted affidavits “that Mehdi's statements were coerced by mistreatment (sleep deprivation); that Mehdi was fed information by his interrogators; and that Mehdi has admitted to lying.” 10

Applying what he called “appropriate judicial skepticism to the jumble of evidence,” Robertson concluded that “the government has credibly shown, and Salahi has not rebutted the showing, that [redacted] Salahi provided lodging for three men for one night at his home in Germany, that one of them was Ramzi bin al-Shibh, and that there was discussion of jihad and Afghanistan.” However, “the government has not credibly shown Salahi to have been a ‘recruiter.' What its evidence shows is that Salahi remained in contact with people he knew to be al-Qaeda members at least until November 1999, and that he was willing to make a referral to a known al-Qaeda member in 1997.” Such contacts, Robertson decided, may show that Salahi was an al-Qaeda sympathizer, perhaps a “fellow traveler,” but that did not prove he was part of al-Qaeda at the time he was detained.

It is undisputed that Salahi swore bayat and was a member of al-Qaida in 1990, but the government had to show that he was still (or again) within its command structure when we was captured on November [redacted] 2001. Salahi's admission that he once was part of al-Qaida but that he severed his ties after 1992 raises burden-of-proof questions: May the burden lawfully be shifted to Salahi to prove his dis-association? If so, at what point does the burden shift?

Robertson observed that the D.C. Court of Appeals, in reviewing other habeas decisions, had ruled “there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing ‘with more persuasive evidence.'”

If that is the rule, one might reasonably ask, how can Guantanamo detainees – locked up for years on a remote isand, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them – how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention – where national security interests are at their zenith and the rights of the alien petitioner at their nadir – is … permissible.”

A habeas court must consider the government's factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant. It is only fair to the petitioner, however – and, considering the government's built-in advantage, not unfair to the government – to view the government's showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence. 11

In the end, Robertson rejected the government's contention that it was up to Slahi to offer evidence proving he had quit al-Qaeda. “The al-Qaeda that Salahi joined in 1991 was very different from the al-Qaeda that turned against the United States in the latter part of the 1990s,” he held. Slahi had joined al-Qaeda to fight the rump Soviet regime in Afghanistan , and he had left Afghanistan at around the time Osama Bin Ladin, reacting to the buildup of U.S. troops in Saudi Arabia during and after the first Gulf War, declared war on the United States . Instead, the government needed to demonstrate that Slahi was an active member of al-Qaeda closer to the time of his capture, when al-Qaeda was clearly targeting the U.S.; it had not done so, and he must be released.

Robertson's decision came as the Obama administration and Congress were negotiating how to fulfill Obama's post-inaugural pledge to close Guantánamo, and even before Robertson's opinion was declassified, Republicans were denouncing both the decision and the administration. Insisting that this ruling “clearly puts the American people in danger and should not be allowed to stand,” Representative Lamar Smith wrote Attorney General Eric Holder demanding an appeal; the ranking member of the Senate Intelligence Committee, Kit Bond of Missouri , told reporters “while Holder's Justice Department should appeal the outrageous decision, I'm not holding my breath. Holder seems more intent on closing Guantanamo Bay than keeping terrorists locked up where they belong.” 12

The Obama administration appealed. Robertson had erred in two respects, it argued: in failing to shift the burden of proof onto Slahi to show he had left al-Qaeda, and in failing to find that the government's case established that Slahi remained part of al-Qaeda after 1992. Robertson had failed to reach that conclusion, moreover, partly because he had insisted on examining each piece of evidence individually and had given little weight to any inculpatory statements Slahi had made that were not corroborated by other evidence; at the very least the appeals court should remand the case back to Robertson and require him to consider statements Slahi had made after he was tortured.

The appeal was argued before a three-judge panel of the D.C. Circuit Court of Appeals on September 17, 2010. At that hearing, one of the judges grilled Slahi's attorneys on Judge Robertson's approach in evaluating the government's case:

JUDGE SENTELLE: Was the Court properly assessing the evidence when it treated the Government's evidence as being, viewing the Government's evidence with something like skepticism?

MS. DUNCAN: Yes, Your Honor. The District Court was doing what all of the District Courts have done in these Guantanamo Bay cases, and that is refusing to give the Government a presumption of reliability.

JUDGE SENTELLE: Now, he didn't say he was refusing to give them presumption of liability, he went beyond that, didn't he?

MS. DUNCAN: No, Your Honor, I don't believe –

JUDGE SENTELLE: No.

MS. DUNCAN: -- he did. He –

JUDGE SENTELLE: What did he mean by that phrase then that he was viewing it with something like skepticism?

MS. DUNCAN: That he was –

JUDGE SENTELLE: It sounds as if he is downgrading the evidence before he ever hears it, like –

MS. DUNCAN: He was –

JUDGE SENTELLE: -- the Government has some other burden to overcome besides a preponderance.

MS. DUNCAN: He was refusing to consider the Government's evidence without skepticism. And when you look at the, in his opinion at the place where he mentions I'm applying my judicial skepticism to this evidence, he's weighing the credibility of different types of evidence from different places and giving them the weight that he thinks it deserves. So, in his application of that comment –

JUDGE SENTELLE: That's not what he said, though. He said that he was viewing it with something like skepticism, and he said it twice, I think, didn't he?

MS. DUNCAN: Correct, Your Honor, he did say it twice. He said it at the very beginning, and I think there he's talking about not accepting the Government's evidence without skepticism, which –

JUDGE SENTELLE: That's two different things, to say not accepting it without skepticism, saying I'm applying skepticism to it.

Judge Sentelle went on:

JUDGE SENTELLE: Have any of the other District Courts used that phrasing that I'm approaching the Government's evidence with skepticism?

MS. DUNCAN: Your Honor, I don't recall if any other judge has worded –

JUDGE SENTELLE: Have we ever approved that formulation?

MS. DUNCAN: Not the word skepticism, but in Bensayah this Court did look at the Government's evidence with some skepticism and asking whether some, you know, outside evidence corroborated evidence at issue in the case, which is not accepting the Government's exhibit at face value, but rather approaching it, making your own credibility determinations of whether that evidence under the totality is reliable.

JUDGE SENTELLE: But he has to make credibility determinations on all evidence in all cases.

MS. DUNCAN: Correct, Your Honor.

JUDGE SENTELLE: But he normally would not say all right, I'm going to look at your evidence, but I'm treating it with skepticism. He's doing something, or seems to be saying that he's doing something different here than he does in a run of the mill case.

MS. DUNCAN: Well, I would agree with you to some extent, but it's not imposing a higher burden on the Government, rather it's recognizing the unique nature of this evidence, that the Government relied exclusively on interrogation reports in its case, and particularly interrogation reports of Mr. Salahi after admitting that Mr. Salahi was subjected to –

JUDGE SENTELLE: Let us – I'm not sure where we crossed the line into classified.

MS. DUNCAN: Your Honor, I promise you that I –

JUDGE SENTELLE: Okay, good.

MS. DUNCAN: -- know that line and I'll –

JUDGE SENTELLE: Be careful.

MS. DUNCAN: -- honor it.

JUDGE SENTELLE: Good.

MS. DUNCAN: I promise.

JUDGE SENTELLE: Okay.

MS. DUNCAN: That the circumstances under which Mr. Salahi made the statements on which the Government relied were, I mean, the Government has admitted in public reports in a public pleadings that we would call it torture they would call it coercive circumstances, but nonetheless that those circumstances as Judge Robertson found rendered all of Mr. Salahi's statements to interrogators suspect. Given those circumstances, given the nature of the evidence in this case where we don't always know who the declarant is, we don't know what the circumstances, under what circumstances statements were made, evidence was gathered, judicial skepticism is really just a means of assessing the reliability of evidence under this unique circumstance of the Guantanamo cases. And when you read his opinion as a whole it's clear that he's not holding the Government to a higher standard, he's properly applying the preponderance of the evidence standard, but figuring out a way where you have conflicting accounts where things aren't corroborated to give the particular pieces of evidence and the Government's ultimate showing the weight it deserves. 13

In the end, the appeals court remanded the case to the District Court for another review of the record, not because Judge Robertson's skepticism was erroneous but because the Appeals Court had issued three other rulings in Guantánamo habeas cases since Robertson's decision that redefined the level of activity required to be considered a “part of” al-Qaeda. Under the prevailing standard, Robertson had looked for evidence that established that Slahi had been operating within al-Qaeda's command structure when he was detained—that is, that he had been carrying out al-Qaeda instructions and orders. Subsequent appellate rulings had held that it wasn't necessary for the government to show that a detainee had been within the organization's command structure to establish that he was “part of” al-Qaeda.

In its opinion, the court was careful to delineate “the precise nature of the government's case against Slahi.” “The government has not criminally indicted Salahi for providing material support to terrorists or the ‘foreign terrorist organization' al-Qaida,” the court emphasized, quoting Judge Robertson's conclusion that “the government's problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.” “Nor, added the court, “does the government seek to detain Salahi under the AUMF on the grounds that he aided the September 11 attacks or ‘purposefully and materially support[ed]' forces associated with al-Qaeda ‘in hostilities against U.S. Coalition partners.'” 14 Rather, the government was asking the court to find that Slahi could still be considered part of al-Qaeda even though he was not taking orders from or actively plotting with the organization.

Judge Robertson has retired, and the case has now been reassigned to Judge Emmett Sullivan, who is currently presiding over a renewed round of fact discovery. Sometime later this year he will once again evaluate the government's claim that Slahi, who joined al-Qaeda in 1991 to fight communists in Afghanistan , remains part of al-Qaeda and poses an ongoing threat to the United States . Meanwhile, the man whose torture and mock execution Defense Secretary Donald Rumsfeld personally ordered remains in what the Washington Post has called “a gilded cage” in Guantánamo. As Peter Finn reported in March, 2010, Slahi, who is now 40, and 53 year-old Tariq al-Sawah, a former explosives expert who renounced his past after his capture, “have become two of the most significant informants ever to be held in Guantanamo .” “Today, they are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege – gardening, writing, painting – separated from other detainees in a cocoon designed to reward and protect.” “Their old jihadi comrades want them dead, revenge for the apostasy, now well known, of working with the United States ,” Finn wrote. “The U.S. government has rewarded them for their cooperation but has refused to countenance their release.” 15

The treatment is an acknowledgement of what Slahi has long insisted: that he voluntarily provided useful information and intelligence from the time he was in U.S. custody, that he had been “honest, cooperative, and forthcoming,” as he told the Guantánamo Administrative Review Board in 2005. 16 The gratuitous cruelty of his torture, meanwhile, had only served to extract what the habeas court concurred were useless, coerced confessions. That voluntary cooperation, Slahi had told the Combatant Status Review Board a year earlier, both left him vulnerable and merited special consideration from the U.S. “You do not want to return to your home country?” the Tribunal President asked Slahi when the subject of a possible future release arose at that hearing.

[Slahi]: No, because I'm threatened because of the amount of information I've provided to the United States, I would be hunted down and killed. I want to be provided security.

Tribunal President: We'll make a note of that; is there a particular country you are interested in going to? Not to say that we make that decision, someone else would make that decision, the Personal Representative is correct, but we'll put it on record.

[Slahi]: United States.

Tribunal President: You want to go to the United States?

[Slahi]: I do.

Tribunal President: OK, that is now made a part of this record, and the State Department will take note of this request.” 17

Slahi returned to the subject of a possible post-Guantánamo life at his Administrative Review Board hearing in 2005 – this time stating that he had since been told there was no chance he would be resettled in the United States and asking to be released to Canada , where he had residency previously, instead. “If you were released to Canada , what would you do?” a board member asked. Slahi answered,

I have been kept out of the world for more than four years and I really don't know what is going on outside. I wish I could have a family a peaceful life without anybody trying to pin anything on me and some kind of money to make me comfortable, to make me serve God, have a house and take care of my big family. That is what I have been doing and most likely what I will do if the opportunity arises. Nonetheless, I need some assistance because to integrate myself back into society. Look at it for example, if I go now to look for a job somewhere I will have to write or they are going to ask me, who is your previous employer and I'm am going to write JTF-GTMO. I was a terror suspect and the guy will tell me are you crazy! Get out of my sight before I call the police. It is understandable, why should anybody take a chance like that. I wouldn't take a chance like that, so I definitely understand. I think just to let any Detainee out without giving some rehab or some help getting his way back into society, what they call reintegration, is bad. 18

***

Mohammed Al-Qahtani

On February 4, 2009, Mohammed al-Qahtani's attorneys filed a motion to hold the United States government in contempt for persistently refusing to turn over evidence essential to arguing his habeas corpus case. They wrote,

Petitioner al Qahtani has been incarcerated at Guantánamo since February 2002. Throughout his imprisonment, he has consistently maintained that he was repeatedly tortured and threatened with torture by U.S. military and civilian interrogators. And since Petitioner al Qahtani filed his habeas petition in October 2006, he has repeatedly asserted that any alleged “admissions” he made to U.S. personnel were extracted through this torture and threats of torture. Until recently, the Government had adamantly denied that any U.S. personnel engaged in acts of torture during Petitioner al Qahtani's interrogation. But on January 14, 2009, Military Commission Convening Authority Susan Crawford finally conceded that by subjecting Petitioner al Qahtani to systematic 20-hour interrogations, prolonged sleep deprivation, 160 days of severe isolation, forced nudity, sexual and religious humiliation, and other aggressive interrogation tactics, the Government had engaged in acts of torture so egregious that she was convinced Petitioner al Qahtani should not be subjected to prosecution before a military commission. In light of Ms. Crawford's admission, the Government can no longer deny that Petitioner al Qahtani was tortured at the hands of U.S. personnel. Yet the Government continues to rely upon his statements before this court as justification for his seven-year imprisonment.

At this juncture, Petitioner al Qahtani's habeas petition has been pending for almost three and a half years. The Government possesses readily available information that documents the torture he endured at the hands of interrogators at Guantánamo. Much of this information reached major media outlets nearly four years ago. Additional exculpatory records regarding Petitioner al Qahtani's torture have been searched, gathered, and provided to Executive and congressional investigatory bodies. These documents are undeniably exculpatory, since they are both “reasonably available” and “tend[] to materially undermine the information presented to support the Government's justification for detaining” him. Inexplicably, the Government still has not relinquished the underlying documents to Petitioner al Qahtani so that he may rebut the Government's evidence against him. 19

The government's case against Qahtani largely consists of statements he made to interrogators beginning in April 2003, two and a half months after his 50-day “Special Interrogation” and immediately following the capture and prolonged torture of Khalid Sheikh Mohammed in the CIA black site in Poland . According to the Justice Department's Inspector General, military interrogators reported that Qahtani became “fully cooperative” after failing a polygraph on March 31, 2003 and being “confronted with the fact that other al-Qaeda members were being apprehended and were providing valuable intelligence.” 20 The Inspector General cited a JTF GTMO Memorandum for the Record dated April 7, 2003 stating that Qahtani “is concerned with cutting the best deal possible for him, evading U.S. prosecution for his crimes, and avoiding incarceration in Saudi Arabia once he is returned home”; the next day, according to the Inspector General, another MFR recorded that “al Qahtani began to describe his knowledge of al-Qaeda in great detail,” and “from that point on he provided a significant amount of detailed information about al-Qaeda and its pre-September 11 operations.” 21

Fourteen of the 17 “primary factors that favor continued detention” listed on Qahtani's October 5, 2006 “Unclassified Summary of Evidence” for the Administrative Review Board in Guantánamo were derived from information Qahtani provided interrogators during this “cooperative” period. These included, under the category of “Commitment,”

1. The detainee stated he first traveled to Afghanistan from Saudi Arabia around the beginning of 2001 in order to participate in jihad, which he deemed a religious obligation. Once in Afghanistan , the detainee attended training at the al Farouq Training Camp.

2. The detainee stated he completed his training approximately three months after he entered Afghanistan , and he was then compelled to swear bayat to Usama bin Laden. The detainee stated he did this in person with Usama bin Laden, without any witnesses, while at Usama bin Laden's residence in Kandahar, Afghanistan.

3. The detainee stated that sometime in the summer of 2001, after he swore bayat to Usama bin Laden, the detainee was approached and asked to conduct a martyr mission from Usama bin Laden….

5. The detainee stated that at the time he agreed to conduct the mission there was no specific plan in place. However, the detainee knew that per his bayat and obligation, he would be called upon at a later time to conduct a martyr mission.

And under the category of “Connections/Associations,”

3. The detainee stated that on approximately 24 April 2001, after graduating from advanced training, he visited Usama bin Laden at his house to honor and praise him. The detainee told Usama bin Laden that he would continue to serve him as he would the prophet Mohammed. During this visit, Usama bin Laden instructed the detainee to contract a senior al Qaida official for instructions on how to serve his religion.

4. The detainee stated that on approximately 22 June 2001, on his own initiative, he met with Usama bin Laden again at Usame bin Laden's house in Kandahar, Afghanistan, to greet him and to tell him that he was ready for his mission to the United States. Usama bin Laden called a senior al Qaida operative and advised him that the detainee had returned from the front line and was ready to complete his mission to America. 22

All of those statements, Qahtani told the Administrative Review Board at his hearing in 2007, were “information I only got from [interrogators] during interrogation sessions.” “Interrogators provided me with this information and details and under pressure and coercion forced me to adopt the story that interrogators wanted to hear,” he insisted. “The information I gave them was not valuable and did not help protect lives or property. I was unable to give any information about anything on the past or future. I just repeated the information given to me during interrogations.”

“This is the first statement I am making of my own free will and without coercion or under threat of torture,” Qahtani asserted in what remains the only publicly available personal account of his experiences. Recalling the litany of abusive methods to which he had been subjected from August 2002 through 2003, Qahtani told the Board, through a translator,

A human being needs four main things in life that were taken from me at Guantanamo. First, to honor religion and freedom to practice religion and respect it. Two, honoring his personal dignity by refraining from humiliating a human being through beatings or cursing him and bad treatment in general. Three, respect for his honor, which means not dishonoring him through sexual humiliation or abuse. Four, respect for human rights, by allowing a human being to sleep and be comfortable where he is; to be in a warm shelter; to have security for his life; to have sufficient food and beverage; to have means to relieve himself and clean his body; to have humane medical treatment; and to know that his family is safe from threats or harm. Again, all of these rights were taken from me…. It was only during this period of physical and psychological torture and inhumane treatment that I was forced to make false statements and fabricate a story. 23

Qahtani's testimony before the Administrative Review Board was released to the public in September 2007. When his case came up again for review the following year, the Unclassified Summary of Evidence repeated the 2006 allegations, with some elaborations; now 18 out of 22 factors favoring continued detention derived from Qahtani's statements to interrogators. The January 17, 2008 document added one item to the factors favoring release or transfer as well: “The detainee stated previous interviewers had coerced him into admitting that he had traveled to the United States to die,” it recorded. “The detainee alleged that in return for this admission, these interviewers promised the detainee his freedom.” 24

A month later, the Bush administration announced it would try Qahtani before the military commissions for war crimes alongside Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Azis Ali, and Mustafa Ahmed Adam al Hawsawi, all of whom had been transferred to Guantánamo in 2006 after prolonged detention in secret CIA prisons. All were to face the death penalty. The sworn charges were referred to Susan Crawford, the Convening Authority of the Military Commissions in April 2008. Qahtani, despairing, attempted suicide. His attorneys learned of the attempt during a visit in late April, when they saw the scars from three self-inflicted cuts, the worst of which “resulted in a deep wound, profuse bleeding, and hospitalization.” Center for Constitutional Rights attorney Gitanjali Gutierrez recorded in her notes from that visit that Qahtani told her “I cannot accept this injustice. If I have to stay in this jail I want to put and end to this suffering.” 25 On May 9, 2008, Crawford dismissed the charges against Qahtani, having concluded, as she would tell Washington Post reporter Bob Woodward shortly after President Obama's inauguration the following January, that “we tortured Qahtani.”

Despite this public admission, both the Bush and the Obama Justice Departments have repeatedly thwarted Qahtani's efforts to challenge the allegations against him in his habeas corpus proceedings. Following the Supreme Court's July 2008 Boumediene decision, which recognized that after years of extrajudicial detention the cost of legal delays “can no longer be borne by those who are in custody,” the courts established specific guidelines to ensure the prompt resolution of habeas cases. One of those rules, devised by District Court Judge Thomas Hogan, gave the government two weeks to turn over all potentially exculpatory evidence to a habeas petitioner once it had filed a factual return in his case. In November 2008, as the deadline approached for the government to produce a long list of materials that Qahtani's attorneys had requested documenting his torture, the government sought a stay of all detainee cases assigned to Judge Hogan and an opportunity to relitigate the established groundrules. Hogan reissued the guidelines, clarifying the government's obligation to give Guantánamo detainees access to potentially exculpatory evidence, and reset the deadline for December 30, 2008. When, a month after that deadline had passed, the now-Obama administration Justice Department finally responded that no exculpatory documents existed but at the same time allowed that “some arguably responsive documents” were still in the declassification process and might be produced some time in the future, Qahtani's attorney's filed a motion to compel the government to turn over documents relating to his interrogation.

This is not a case in which the Government must conduct a global search in order to identify those documents that are “exculpatory.” Nor is this a case involving mere allegations of mistreatment, but one in which there is no dispute that the United States tortured Petitioner al Qahtani to procure incriminating evidence that it now relies upon to justify his continued detention. The Government can offer no justification for failing to comply with Section I.D.1 of the Amended [Case Management Order]. The Government's failure to comply with court-imposed deadlines has deprived Petitioner al Qahtani of information essential to rebut the Government's factual return, and has prevented this Court from adjudicating the substance of his challenge to his continued confinement. Accordingly, this Court should grant Petitioner al Qahtani's motion, order the Government to promptly comply with Section I.D.1 and hold the Government in contempt of Court. 26

Among the materials Qahtani's attorneys had been seeking are videotapes of his interrogations. In June 2009, noting that Guantánamo habeas guidelines required units to balance the value the government's materials would have for detainees against “the burden imposed on the government” of gathering and producing them to detainee's attorneys, Judge Rosemary M. Collyer ordered the government to assess the burden of producing any Qahtani videotapes. Judge Collyer summarized the government's response in a subsequent order:

In response to the Court's June 2, 2009 discovery order requiring the Government to report on the burden that would be imposed if the Court were to require the Government to produce all audio/video recordings of Petitioner from August 8, 2002 through January 15, 2003, [one and one-half line redaction]. Each tape is approximately [redacted] long. In order to clear these tapes for release, multiple agencies, including the Department of Defense (“DOD”), the FBI, and the Central Intelligence Agency would have to review the tapes frame-by-frame. Thus, to require the Government to produce all of these videotapes would be excessively burdensome.

However, the tapes created at the end of the period from August 13, 2002 to November 22, 2003 likely have some value to Petitioner. To justify Petitioner's detention, the Government relies on Petitioner's statements made from April 2003 through 2004. Petitioner challenges the veracity and reliability of the statements. He contends that his statements were so tainted by the cumulative effects of abusive treatment that took place previously that the statements cannot be credited or relied upon. Accordingly, Petitioner seeks information regarding his own mental and physical status both prior to and at the time he made the incriminating statements on which the Government relies. Thus, the audio/video recordings made later would be more likely to contain information relevant to Petitioner's challenge on voluntariness grounds than those made earlier. To provide relevant information to Petitioner and yet to ease the burden on the Government, the Court will order the Government to produce only these audio/video recordings of Petitioner created between November 15, 2002 and November 22, 2002. 27

Qahtani's lawyers were requesting any and all videotapes recorded from the time Qahtani was placed in isolation in the Guantánamo brig on August 8, 2002 through the day his “special interrogation” was halted on January 15, 2003. The tapes Judge Collyer ordered the government to produce were those recorded the week before the Rumsfeld-ordered “special interrogation” began, after three and one-half months of isolation and the week-long Camp Delta interrogation that caused an FBI agent to recommend “leaving him alone, let[ting] him get healthy again.” 28 The letter that T.J. Harrington, Deputy Assistant Director of the FBI's Counterterrorism Division, sent to the head of the Army's Criminal Investigation Command on July 14, 2004 gives a glimpse of what those videotapes may depict. “By late November,” Harrington reported, “the detainee was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).” 29

A year and a half later, Qahtani's lawyers and the government continue to wrangle over what materials the government should be required to produce that would document his treatment at the hands of military interrogators in Guantánamo, and there are indications that the protracted habeas maneuverings themselves are exacting a toll on Qahtani. On September 10, 2010, the government submitted a “status report” to the court that suggested Qahtani had told military prosecutors in Guantánamo that he wanted to fire his attorneys and withdraw his habeas corpus petition; in an attached affidavit, the Staff Judge Advocate of JTF GTMO reported that Qahtani had told the Assistant Staff Judge Advocate in late August that he wanted “to cancel his lawyer and cancel his case. ISN 063 said that in the future he would try to obtain new legal counsel, but for now he wanted to terminate everything.” 30 In a subsequent status conference before Judge Collyer, Qahtani's attorneys disputed this , saying they met with Qahtani on September 13 and that “there is no chance” he intended to discharge he lawyers or dismiss his habeas action. 31.

***

Ibn al-Sheikh al-Libi

When President Bush announced the transfer of 14 “high value detainees” from CIA black sites to Guantánamo in September 2006, conspicuously absent from the list was Ibn al-Sheikh al-Libi, the unnamed source of Colin Powell's assertion before the U.N. Security Council that Saddam Hussein had given two al-Qaeda operatives chemical and biological weapons training. As Human Rights Watch noted in a letter to the president in February 2007, al-Libi was one of 38 men believed to have been held in CIA prisons who had effectively disappeared; the letter asked the president to “disclose the identities, fate, and current whereabouts of all prisoners held for any period of time at facilities operated or controlled by the CIA since 2001” and, for all those who had been transferred to the custody of other governments, to “disclose the date and location of the transfer.” 32

There were, by then, unconfirmed reports that al-Libi and four other Libyans the U.S. had been holding had been rendered to Tripoli. After years of ruptured relations and terrorism-related sanctions that began under Ronald Reagan in the 1980s, the Bush administration announced in May 2006 that it was restoring full diplomatic ties with Libya, specifically citing the Qaddifi regime's cooperation in the “War on Terror.” “We are taking these actions in recognition of Libya's continued commitment to its renunciation of terrorism and the excellent cooperation Libya has provided to the United States and other members of the international community in response to common global threats faced by the civilized world since September 11, 2001,” Secretary of State Condoleezza Rice declared in a statement heralding “a new era in U.S.-Libya relations.” 33 In October 2007, the Washington Post , citing a “Libyan security source,” confirmed that al-Libi had been turned over to Tripoli not long before that announcement, and that he had told his Libyan jailers that, following his torture in Egypt and his debriefing in Afghanistan, where he recanted the alleged al-Qaeda – Iraq connection, he had been shuffled between CIA black sites in Jordan, Morocco, Afghanistan, and a “very cold” place his captors had told him was Alaska but which was likely the CIA black site in Poland. 34

Neither the U.S. nor the Libyan government ever officially confirmed that al-Libi had been transferred to Qaddafi, but by early 2009 it was clear that he was among a group of former U.S. detainees being held in Tripoli's Abu Salim prison, and the Libyan government was facing growing pressure from human rights organizations and lawyers for other U.S. detainees to allow access to the group. In the Spring of 2009, an attorney for Abu Zubaydah began working through intermediaries to request an opportunity to interview al-Libi, an associate of Abu Zubaydah at the Al Khaldan training camp in Afghanistan in the 1990s. 35 Then, on April 27, 2009, a Human Rights Watch delegation on a fact-finding mission to Libya was allowed into Abu Salim prison, where they were able to interview four former U.S. detainees, all of whom described being tortured in U.S. custody; one, Mohamed Ahmad Mohamed Al Shoroeiya, who was known as Hassan Rabi'i, described his treatment at the hands of Americans in what he believed was Bagram, Afghanistan: “The interpreters who directed the questions to us did it with beatings and insults,” he told the delegation. “They used cold water, ice water. They put us in a tub with cold water. We were forced [to go] for months without clothes. They brought a doctor at the beginning. He put my leg in a plaster. One of the methods of interrogation was to take the plaster off and stand on my leg.” 36

The Human Right Watch team also saw al-Libi, who they were told had been tried in secret by the Libyan State Security Court and sentenced to life in prison. It was the first time he had had contact with the outside world since he was captured in December 2001. Heba Morayef, a Human Rights Watch researcher, and another member of the delegation spoke with him briefly in the prison courtyard, telling him they wanted to interview him, too, about his experiences in U.S. custody. Al-Libi became angry. “Where were you when I was being tortured in an American prison?” was all he would say before walking away. 37

Two weeks later, the Libyan newspaper Oea , a daily owned by Qaddafi's son Saif al-Islam Qaddafi, announced that al-Libi had committed suicide in his cell in Abu Salim prison. “Upon discovering the body, the police and a doctor were dispatched to the prison immediately to start the investigation,” the report stated. The Oea story noted that al-Libi had been receiving regular visits from his family in recent months, and that friends were questioning the alleged circumstances of his death. Al-Libi's death was confirmed two days later by Human Rights Watch, which called on the U.S. and Libya to conduct a full and transparent investigation. Pressed for information about the reported suicide, a State Department spokesman told CNN, “I have to refer you to the government of Libya for any details regarding the matter.” 38

10. The statements were made during interrogations following Mehdi's arrest in France in 2003. Mehdi, a Moroccan immigrant who was living in Germany at the time of the 9/11 attacks, was prosecuted in France in 2006 in connection with an alleged plot to carry out a bombing on Reunion Island in the Indian Ocean.

16. In his 2010 article, Peter Finn quoted military officials who believe this privileged treatment is not a sufficient reward for Slahi's cooperation, and that he should be given political asylum and placed in a witness protection program in the United States . “If we don't do this right, it will be much harder to get other people to cooperate with us,” one retired senior military intelligence officer told Finn. “And if I was still in the business, I'd want it known we protected them. It's good advertising.”

20. The IG report indicates that Qahtani had been asking to be given a polygraph exam for four months.

21. Department of Justice Office of the Inspector General Report, “A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq,” May 2008, 117-120, available at www.justice.gov/oig/special/s0805/final.pdf

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